EXHIBIT (3)(B)
BYLAWS
OF
FIRST UNION CORPORATION
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICE. The principal office of the corporation shall
be located at such place as the Board of Directors may fix from time to time.
SECTION 2. REGISTERED OFFICE. The registered office of the corporation
required by law to be maintained in the State of North Carolina may be, but need
not be, identical with the principal office.
SECTION 3. OTHER OFFICES. The corporation may have offices at such other
places, either within or without the State of North Carolina, as the Board of
Directors may designate or as the affairs of the corporation may require from
time to time.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 1. PLACE OF MEETINGS. All meetings of shareholders shall be held at
the principal office of the corporation, or at such other place, either within
or without the State of North Carolina, as shall in each case be fixed by the
Chairman of the Board, the President, the Secretary or the Board of Directors
and designated in the notice of the meeting.
SECTION 2. ANNUAL MEETINGS. The annual meeting of shareholders shall be
held at 9:30 a.m. on the third Tuesday in April of each year, or at such other
time and on such other date as the Board of Directors may determine. The Board
of Directors shall appoint persons to act as Chairman and as Secretary of the
meeting.
SECTION 3. SUBSTITUTE ANNUAL MEETING. If the annual meeting shall not be
held on the day designated by these bylaws, a substitute annual meeting may be
called in accordance with the provisions of Section 4 of this Article II. A
meeting so called shall be designated and treated for all purposes as the annual
meeting.
SECTION 4. SPECIAL MEETINGS. Special meetings of the shareholders may be
called at any time by the Board of Directors, the Chairman of the Board or the
President. The Board of Directors shall appoint persons to act as Chairman and
as Secretary of the meeting.
SECTION 5. NOTICE OF MEETINGS. Written notice stating the date, time, and
place of each shareholder meeting shall be given not less than 10 nor more than
60 days before the date of the meeting, by personal delivery, telegraph,
teletype, or other form of wire or wireless communication, facsimile
transmission, mail or private carrier, by or at the direction of the Board of
Directors, the Chairman of the Board or the President, to each shareholder
entitled to vote at such meeting; provided that such notice must be given to all
shareholders with respect to any meeting at which a merger or share exchange is
to be considered and in such other instances as required by law. If mailed, such
notice shall be deemed to be effective when deposited in the United States mail,
correctly addressed to the shareholder at the shareholder's address as it
appears on the current record of shareholders of the corporation, with postage
thereon prepaid.
In the case of a special meeting, the notice of meeting shall include a
description of the purpose or purposes for which the meeting is called. In the
case of an annual or substitute annual meeting, the notice of meeting need not
include a description of the purpose or purposes for which the meeting is
called, unless such a description is required by the provisions of the North
Carolina Business Corporation Act.
When a meeting is adjourned to a different date, time or place, notice need
not be given of the new date, time or place if (i) the new date, time or place
is announced at the meeting before adjournment, and (ii) a new record date is
not fixed for the adjourned meeting. If a new record date is fixed for the
adjourned meeting (which must be done if the new date is more than 120 days
after the date of the original meeting), notice of the adjourned meeting must be
given as provided in this section to persons who are shareholders as of the new
record date.
SECTION 6. WAIVER OF NOTICE. Any shareholder may waive notice of any
meeting before or after the meeting. The waiver must be in writing, signed by
the shareholder and delivered to the corporation for inclusion in the minutes or
filing with the corporate records. A shareholder's attendance, in person or by
proxy, at a meeting (i) waives objection to lack of
notice or defective notice of the meeting, unless the shareholder or his proxy
at the beginning of the meeting objects to holding the meeting or transacting
business at the meeting, and (ii) waives objection to consideration of a
particular matter at the meeting that is not within the purpose or purposes
described in the meeting notice, unless the shareholder or his proxy objects to
considering the matter before it is voted upon.
SECTION 7. SHAREHOLDERS' LIST. Before each meeting of shareholders, the
Secretary shall prepare an alphabetical list of the shareholders entitled to
notice of such meeting. The list shall be arranged by voting group (and within
each voting group by class or series of shares) and show the address of and
number of shares held by each shareholder. The list shall be kept on file at the
principal office of the corporation or at a place identified in the meeting
notice in the city where the meeting will be held, for the period beginning two
business days after notice of the meeting is given and continuing through the
meeting and shall be available for inspection by any shareholder, his agent or
attorney, at any time during regular business hours. The list shall also be
available at the meeting and shall be subject to inspection by any shareholder,
his agent or attorney, at any time during the meeting or any adjournment
thereof.
SECTION 8. VOTING GROUP. All shares of one or more classes or series that
under the articles of incorporation or the North Carolina Business Corporation
Act are entitled to vote and be counted together collectively on a matter at a
meeting of shareholders, constitute a voting group. All shares entitled by the
articles of incorporation or the North Carolina Business Corporation Act to vote
generally on a matter are for that purpose a single voting group. Classes or
series of shares shall not be entitled to vote separately by voting group unless
expressly authorized by the articles of incorporation or specifically required
by law.
SECTION 9. QUORUM. Shares entitled to vote as a separate voting group may
take action on a matter at the meeting only if a quorum of those shares exists.
A majority of the votes entitled to be cast on the matter by the voting group
constitutes a quorum of that voting group for action on that matter.
Once a share is represented for any purpose at a meeting, it is deemed
present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for that
adjourned meeting.
In the absence of a quorum at the opening of any meeting of shareholders,
such meeting may be adjourned from time to time by the vote of a majority of the
votes cast on the motion to adjourn. Subject to the provisions of Section 5 of
this Article II, at any adjourned meeting any business may be transacted that
might have been transacted at the original meeting if a quorum exists with
respect to the matter proposed.
SECTION 10. PROXIES. Shares may be voted either in person or by one or more
proxies authorized by a written appointment of proxy signed by the shareholder
or by his duly authorized attorney-in-fact. An appointment of proxy is valid for
11 months from the date of its execution, unless a different period is expressly
provided in the appointment form.
SECTION 11. VOTING OF SHARES. Subject to the provisions of the articles of
incorporation, each outstanding share shall be entitled to one vote on each
matter voted on at a meeting of shareholders.
Except in the election of directors as governed by the provisions of
Section 3 of Article III, if a quorum exists, action on a matter by a voting
group is approved if the votes cast within the voting group favoring the action
exceed the votes cast opposing the action, unless a greater vote is required by
law, the articles of incorporation or these bylaws.
Absent special circumstances, shares of the corporation are not entitled to
vote if they are owned, directly or indirectly, by another corporation in which
the corporation owns, directly or indirectly, a majority of the shares entitled
to vote for directors of the second corporation; provided that this provision
does not limit the power of the corporation to vote its own shares held by it in
a fiduciary capacity.
SECTION 12. INFORMAL ACTION BY SHAREHOLDERS. Any action that is required or
permitted to be taken at a meeting of the shareholders may be taken without a
meeting if one or more written consents, describing the action so taken, shall
be signed by all of the shareholders who would be entitled to vote upon such
action at a meeting and delivered to the corporation for inclusion in the
minutes or filing with the corporate records.
If the corporation is required by law to give notice to nonvoting
shareholders of action to be taken by unanimous written consent of the voting
shareholders, then the corporation shall give the nonvoting shareholders, if
any, written notice of the proposed action at least 10 days before the action is
taken.
SECTION 13. ACTIONS TO BE TAKEN AT AN ANNUAL MEETING OF SHAREHOLDERS. No
business shall be transacted at an annual meeting of shareholders, except such
business as shall be (i) specified in the notice of meeting given as provided in
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Section 5 of this Article II, (ii) otherwise brought before the meeting by or at
the direction of the Board of Directors, or (iii) otherwise brought before the
meeting by a shareholder of record of the corporation entitled to vote at the
meeting, in compliance with the procedure set forth in this Section 13. For
business to be brought before an annual meeting by a shareholder pursuant to
(iii) above, the shareholder must have given timely notice in writing to the
Secretary. To be timely, a shareholder's notice shall be delivered to, or mailed
and received at, the principal executive offices of the corporation not less
than 60 days nor more than 90 days prior to the meeting; provided, however, in
the event that less than 70 days' notice or prior public disclosure of the date
of the meeting is given or made to shareholders, notice by the shareholder to be
timely must be so received not later than the close of business on the 10th day
following the day on which such notice of the date of the meeting or such public
disclosure was made. Notice shall be deemed to have been given more than 70 days
in advance of the annual meeting if the annual meeting is called on the date
indicated by Section 2 of this Article II without regard to when public
disclosure thereof is made. Notice of actions to be brought before the annual
meeting pursuant to (iii) above shall set forth, as to each matter the
shareholder proposes to bring before the meeting, (a) a brief description of the
business desired to be brought before the meeting and the reasons for bringing
such business before the meeting, and (b) as to the shareholder giving the
notice, (i) the name and address, as they appear on the corporation's books, of
such shareholder, (ii) the classes and number of shares of the corporation which
are owned of record or beneficially by such shareholder, and (iii) any material
interest of such shareholder in such business other than his interest as a
shareholder of the corporation. Notwithstanding anything in these bylaws to the
contrary, no business shall be conducted at an annual meeting except in
accordance with the provisions set forth in this Section 13. The Chairman of the
meeting shall, if the facts warrant, determine and declare to the meeting that
any business was not properly brought before the meeting in accordance with the
provisions prescribed by these bylaws and, if he should so determine, he shall
so declare to the meeting and any such business not so properly brought before
the meeting shall not be transacted.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of the corporation shall be
managed under the direction of, the Board of Directors.
SECTION 2. NUMBER, TERM OF OFFICE AND QUALIFICATION. The number of
directors shall be determined by the Board of Directors in accordance with
Article 7 of the articles of incorporation. Each director shall continue in
office until the annual meeting of shareholders at which his term is to expire
and until his successor shall have been elected and qualified, or until his
death or until he shall resign or shall have been disqualified or removed in the
manner hereinafter provided. Directors need not be residents of the State of
North Carolina or shareholders of the corporation.
SECTION 3. CLASSIFICATION AND ELECTION. The Board of Directors shall be
classified in accordance with the provisions of Article 7 of the articles of
incorporation. Each class of directors shall be elected at the annual meeting of
shareholders at which the term of their predecessors is to expire and the
persons who shall receive the highest number of votes shall be elected
directors. If prior to voting for the election of directors, demand therefor
shall be made by or on behalf of any shares entitled to vote at such meeting,
the election of directors shall be by ballot.
SECTION 4. REMOVAL. The Board of Directors or any individual director may
be removed from office only in accordance with the provisions of Article 7 of
the articles of incorporation.
SECTION 5. VACANCIES. Any vacancies in the Board of Directors shall be
filled in accordance with the provisions of Article 7 of the articles of
incorporation.
SECTION 6. COMPENSATION. The Board of Directors may provide for the
compensation of directors for their services as such and for the payment or
reimbursement of any or all expenses incurred by them in connection with such
services.
SECTION 7. NOMINATIONS FOR ELECTION OF DIRECTORS. Only persons who are
nominated in accordance with the provisions set forth in these bylaws shall be
eligible to be elected as directors at an annual meeting of shareholders.
Nominations of persons for election to the Board of Directors may be made at
such meeting of shareholders (i) by or at the direction of the Board of
Directors, or (ii) by any shareholder of the corporation who is a shareholder of
record at the time of giving of notice provided for in this Section 7, who shall
be entitled to vote for the election of directors at the meeting and who
complies with the notice procedures set forth in this Section 7. Such
nominations, other than those made by or at the direction of the Board, shall be
made pursuant to timely notice in writing to the Secretary. To be timely, a
shareholder's notice shall be delivered to, or mailed and received at, the
principal executive offices of the corporation not less
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than 60 days nor more than 90 days prior to the meeting; provided, however, in
the event that less than 70 days' notice or prior public disclosure of the date
of the meeting is given or made to shareholders, notice by the shareholder to be
timely must be so received not later than the close of business on the 10th day
following the day on which such notice of the date of the meeting or such public
disclosure was made. Notice shall be deemed to have been given more than 70 days
in advance of the annual meeting if the annual meeting is called on the date
indicated by Section 2 of Article II of these bylaws without regard to when
public disclosure thereof is made. Such shareholder's notice shall set forth (a)
as to each person whom the shareholder proposes to nominate for election or
reelection as a director, information relating to such person similar in
substance to that required to be disclosed in solicitations of proxies for
election of directors pursuant to Items 7(a) and (b) of Regulation 14A under the
Securities Exchange Act of 1934, as amended, and such person's written consent
to being named as a nominee and to serving as a director if elected, and (b) as
to the shareholder giving the notice, (i) the name and address, as they appear
on the corporation's books, of such shareholder, and (ii) the class and number
of shares of the corporation which are owned of record or beneficially by such
shareholder. At the request of the Board of Directors, any person nominated by
the Board for election as a director shall furnish to the Secretary that
information required to be set forth in a shareholder's notice of nomination
which pertains to the nominee. The Chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that a nomination was not made in
accordance with the provisions prescribed by these bylaws and, if he should so
determine, he shall so declare to the meeting and the defective nomination shall
be disregarded. The foregoing provisions of this Section 7 shall not apply to
any director who is nominated and elected under specified circumstances by
holders of any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation.
ARTICLE IV
MEETINGS OF DIRECTORS
SECTION 1. REGULAR MEETINGS. A regular meeting of the Board of Directors
shall be held immediately after, and at the same place as, the annual meeting of
shareholders. In addition, the Board of Directors may provide, by resolution,
the time and place, either within or without the State of North Carolina, for
the holding of additional regular meetings. Such a meeting may be held by
teleconference call to the extent permitted by applicable law.
SECTION 2. SPECIAL MEETINGS. Special meetings of the Board of Directors may
be called by or at the request of the Chairman of the Board, the President or by
any three directors. Such a meeting may be held either within or without the
State of North Carolina, as fixed by the person or persons calling the meeting.
Such a meeting may be held by teleconference call to the extent permitted by
applicable law.
SECTION 3. NOTICE OF MEETINGS. Regular meetings of the Board of Directors
may be held without notice. The person or persons calling a special meeting of
the Board of Directors shall, at least twenty-four hours before the meeting,
give or cause to be given notice thereof by any usual means of communication.
Such notice need not specify the purpose for which the meeting is called. Any
duly convened regular or special meeting may be adjourned by the directors to a
later time without further notice.
SECTION 4. WAIVER OF NOTICE. Any director may waive notice of any meeting
before or after the meeting. The waiver must be in writing, signed by the
director entitled to the notice and delivered to the corporation for inclusion
in the minutes or filing with the corporate records. A director's attendance at
or participation in a meeting waives any required notice of such meeting, unless
the director at the beginning of the meeting, or promptly upon arrival, objects
to holding the meeting or to transacting business at the meeting and does not
thereafter vote for or assent to action taken at the meeting.
SECTION 5. QUORUM. Unless the articles of incorporation or these bylaws
provide otherwise, a majority of the number of directors fixed by or pursuant to
the articles of incorporation shall constitute a quorum for the transaction of
business at any meeting of the Board of Directors.
SECTION 6. MANNER OF ACTING. Except as otherwise provided in the articles
of incorporation or these bylaws, including Section 9 of this Article IV, the
affirmative vote of a majority of the directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors.
SECTION 7. PRESUMPTION OF ASSENT. A director who is present at a meeting of
the Board of Directors or a committee of the Board of Directors when corporate
action is taken is deemed to have assented to the action taken unless (i) he
objects at the beginning of the meeting or promptly upon his arrival, to holding
the meeting or to transacting business at the meeting, (ii) his dissent or
abstention from the action taken is entered in the minutes of the meeting, or
(iii) he files
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written notice of his dissent or abstention with the presiding officer of the
meeting before its adjournment or with the corporation immediately after the
adjournment of the meeting. Such right of dissent or abstention is not available
to a director who votes in favor of the action taken.
SECTION 8. ACTION WITHOUT MEETING. Action required or permitted to be taken
at a meeting of the Board of Directors may be taken without a meeting if the
action is taken by all members of the Board. The action must be evidenced by one
or more written consents signed by each director before or after such action,
describing the action taken and included in the minutes or filed with the
corporate records.
SECTION 9. COMMITTEES OF THE BOARD. The Board of Directors may create an
Executive Committee and other committees of the Board and appoint members of the
Board of Directors to serve on them. The creation of a committee of the Board
and appointment of members to it must be approved by the greater of (i) a
majority of the number of directors in office when the action is taken, or (ii)
the number of directors required to take action pursuant to Section 6 of this
Article IV. Each committee of the Board must have two or more members and, to
the extent authorized by law and specified by the Board of Directors, shall have
and may exercise all of the authority of the Board of Directors in the
management of the corporation. Each committee member serves at the pleasure of
the Board of Directors. The provisions in these bylaws governing meetings,
action without meetings, notice, waiver of notice, quorum and voting
requirements of the Board of Directors apply to committees of the Board
established under this section.
ARTICLE V
OFFICERS
SECTION 1. NUMBER OF OFFICERS. The officers of the corporation may be a
Chairman of the Board, one or more Vice Chairmen (who shall not be required to
be directors of the corporation), a President, one or more Vice Presidents, a
Secretary, a Treasurer and such other officers as may be appointed in accordance
with the provisions of this Article V. Any two or more offices may be held by
one person, but no individual may act in more than one capacity where action of
two or more officers is required.
SECTION 2. ELECTION, TERM OF OFFICE AND QUALIFICATION. Each officer, except
such officers as may be appointed in accordance with the provisions of Section 3
of this Article V, shall be chosen by the Board of Directors and shall hold
office until the annual meeting of the Board of Directors held next after his
election or until his successor shall have been duly chosen and qualified or
until his death or until he shall resign or shall have been disqualified or
removed from office.
SECTION 3. SUBORDINATE OFFICERS. The Board of Directors may delegate to any
officer the power to appoint any subordinate officer and to prescribe his
respective authority and duties.
SECTION 4. OFFICERS ACTING AS ASSISTANT SECRETARY. Any Senior Vice
President, Vice President or Assistant Vice President shall have, by virtue of
his office and by authority of these bylaws the authority from time to time to
act as an Assistant Secretary of the corporation and to such extent said
officers are appointed to the office of Assistant Secretary.
SECTION 5. REMOVAL. The officers specifically designated in Section 1 of
this Article V may be removed, either with or without cause, by vote of a
majority of the number of directors then in office. The officers appointed in
accordance with the provisions of Section 3 of this Article V may be removed,
either with or without cause, by a majority vote of the directors present at any
meeting or by any officer upon whom such power of removal may be conferred by
the Board of Directors. The removal of any person from office shall be without
prejudice to the contract rights, if any, of the person so removed.
SECTION 6. RESIGNATIONS. Any officer may resign at any time by giving
written notice to the Board of Directors, the Chairman of the Board or the
President, or if he was appointed by an officer in accordance with Section 3 of
this Article V, by giving written notice to the officer who appointed him. Such
resignation shall take effect at the time specified therein, or if no time is
specified therein, at the time such resignation is received by the Chairman of
the Board, the President or the officer who appointed such officer, unless it
shall be necessary to accept such resignation before it becomes effective, in
which event the resignation shall take effect upon its acceptance by the Board
of Directors, the Chairman of the Board, the President or the officer who
appointed such officer. Unless otherwise specified therein, the acceptance of
any such resignation shall not be necessary to make it effective.
SECTION 7. VACANCIES. A vacancy in an office because of death, resignation,
removal, disqualification or any other cause, shall be filled for the unexpired
portion of the term in the manner prescribed by these bylaws for regular
appointments or elections to such office.
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SECTION 8. CHIEF EXECUTIVE OFFICER. The Chairman shall be the Chief
Executive Officer of the corporation unless some other officer is so designated
by the Board of Directors.
SECTION 9. DUTIES OF OFFICERS. The duties of all officers elected by the
Board of Directors shall be prescribed by the Board of Directors. Nevertheless,
the Board of Directors may delegate to the Chief Executive Officer the authority
to prescribe the duties of other officers of the corporation not inconsistent
with law, the articles of incorporation and these bylaws.
In case of the absence of any officer of the corporation or for any other
reason that the Board of Directors may deem sufficient, the Board of Directors
may delegate the powers or duties of such officer to any other officer or to any
director for the time being, provided a majority of the directors then in office
concurs therein.
SECTION 10. SALARIES OF OFFICERS. No officer of the corporation shall be
prevented from receiving a salary as such officer or from voting thereon by
reason of the fact that he is also a director of the corporation. The salaries
of the officers of the corporation, including such officers as may be directors
of the corporation, shall be fixed from time to time by the Board of Directors,
except that the Board of Directors may delegate to any officer who has been
given power to appoint subordinate officers, as provided in Section 3 of this
Article V, the authority to fix the salaries or other compensation of any such
officers appointed by him.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. CONTRACTS. The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the corporation. Such authority may
be general or confined to specific instances.
SECTION 2. LOANS. No loans shall be contracted on behalf of the corporation
and no evidence of indebtedness shall be issued in its name unless authorized by
the Board of Directors. Such authority may be general or confined to specific
instances.
SECTION 3. CHECKS AND DRAFTS. All checks, drafts or other orders for the
payment of money, issued in the name of the corporation, shall be signed by such
officer or officers, agent or agents of the corporation and in such manner as
shall from time to time be determined by the Board of Directors.
SECTION 4. DEPOSITS. All funds of the corporation not otherwise employed
shall be deposited from time to time to the credit of the corporation in such
depositories as may be selected by or under the authority of the Board of
Directors.
ARTICLE VII
SHARES AND THEIR TRANSFER
SECTION 1. CERTIFICATES FOR SHARES. The Board of Directors may authorize
the issuance of some or all of the shares of the corporation's classes or series
without issuing certificates to represent such shares. If shares are represented
by certificates, the certificates shall be in such form as required by law and
as determined by the Board of Directors. Certificates shall be signed, either
manually or in facsimile, by the Chairman of the Board, the President or a Vice
President and by the Secretary or Treasurer or an Assistant Secretary or an
Assistant Treasurer. All certificates for shares shall be consecutively numbered
or otherwise identified and entered into the stock transfer books of the
corporation. When shares are represented by certificates, the corporation shall
issue and deliver to each shareholder to whom such shares have been issued or
transferred, certificates representing the shares owned by him. When shares are
not represented by certificates, then within a reasonable time after the
issuance or transfer of such shares, the corporation shall send the shareholder
to whom such shares have been issued or transferred a written statement of the
information required by law to be on certificates.
SECTION 2. STOCK TRANSFER BOOKS. The corporation shall keep a book or set
of books, to be known as the stock transfer books of the corporation, containing
the name of each shareholder of record, together with such shareholder's address
and the number and class or series of shares held by him. Transfers of shares of
the corporation shall be made only on the stock transfer books of the
corporation by the holder of record thereof or by his legal representative, who
shall furnish proper evidence of authority to transfer, or by his attorney
authorized to effect such transfer by power of attorney
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duly executed and filed with the Secretary, and upon surrender for cancellation
of the certificate for such shares (if the shares are represented by
certificates).
SECTION 3. LOST, STOLEN OR DESTROYED CERTIFICATES. The Board of Directors
may direct a new certificate to be issued in place of any certificate
theretofore issued by the corporation claimed to have been lost, stolen or
destroyed, upon receipt of an affidavit of such fact from the person claiming
the certificate to have been lost, stolen or destroyed. When authorizing such
issue of a new certificate, the Board of Directors shall require that the owner
of such lost, stolen or destroyed certificate, or his legal representative, give
the corporation a bond in such sum and with such surety or other security as the
Board may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate claimed to have been lost, stolen or
destroyed, except where the Board of Directors by resolution finds that in the
judgment of the directors the circumstances justify omission of a bond.
SECTION 4. FIXING RECORD DATE. The Board of Directors may fix a future date
as the record date for one or more voting groups in order to determine the
shareholders entitled to notice of a shareholders' meeting, to demand a special
meeting, to vote or to take any other action. Such record date may not be more
than 70 days before the meeting or action requiring a determination of
shareholders. A determination of shareholders entitled to notice of or to vote
at a shareholders' meeting is effective for any adjournment of the meeting
unless the Board of Directors fixes a new record date for the adjourned meeting,
which it must do if the meeting is adjourned to a date more than 120 days after
the date fixed for the original meeting.
If no record date is fixed by the Board of Directors for the determination
of shareholders entitled to notice of or to vote at a meeting of shareholders,
the close of business on the day before the first notice of the meeting is
delivered to shareholders shall be the record date for such determination of
shareholders.
The Board of Directors may fix a date as the record date for determining
shareholders entitled to a distribution or share dividend. If no record date is
fixed by the Board of Directors for such determination, it is the date the Board
of Directors authorizes the distribution or share dividend.
SECTION 5. HOLDER OF RECORD. Except as otherwise required by law, the
corporation may treat the person in whose name the shares stand of record on its
books as the absolute owner of the shares and the person exclusively entitled to
receive notification and distributions, to vote and to otherwise exercise the
rights, powers and privileges of ownership of such shares.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 1. DISTRIBUTIONS. The Board of Directors may from time to time
authorize, and the corporation may grant, distributions and share dividends to
its shareholders pursuant to law and subject to the provisions of the articles
of incorporation.
SECTION 2. SEAL. The corporate seal of the corporation shall consist of two
concentric circles between which is the name of the corporation and in the
center of which is inscribed SEAL; and such seal, as impressed or affixed on the
margin hereof, is hereby adopted as the corporate seal of the corporation.
SECTION 3. FISCAL YEAR. The fiscal year of the corporation shall be fixed
by the Board of Directors.
SECTION 4. AMENDMENTS. Except as otherwise provided in these bylaws, the
articles of incorporation or the North Carolina Business Corporation Act, these
bylaws may be amended or repealed and new bylaws may be adopted by the
affirmative vote of a majority of the number of directors then in office at any
regular or special meeting of the Board of Directors. The Board of Directors
shall not have power to amend, repeal or adopt a bylaw (i) requiring more than a
majority of the voting shares for a quorum at a meeting of shareholders or more
than a majority of the votes cast to constitute action by the shareholders,
except where higher percentages are required by law, (ii) providing for the
management of the corporation other than by the Board of Directors or its
Executive Committee, (iii) increasing or decreasing the authorized number of
directors beyond the maximum number or minimum number set forth in Article 7 of
the articles of incorporation, or (iv) inconsistent with, or (as to any matter
covered by said Article 7) in a manner other than as prescribed by, Article 7 of
the articles of incorporation. The shareholders may amend or repeal the bylaws
and adopt new bylaws at any annual meeting or at a special meeting called for
such purpose provided that no bylaw may be so amended, repealed or adopted which
is inconsistent with, or (as to any matter covered by said Article 7) adopted in
a manner other than as prescribed by, Article 7 of the articles of incorporation
without the affirmative vote of the holders of not less than
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80% of the outstanding shares of capital stock of the corporation entitled to
vote in the election of directors, voting together as a single class. No bylaw
adopted or amended by the shareholders shall be altered or repealed by the Board
of Directors, except when the articles of incorporation or a bylaw adopted by
the shareholders authorizes the Board of Directors to adopt or repeal any such
bylaw.
SECTION 5. DEFINITIONS. Unless the context otherwise requires, terms used
in these bylaws shall have the meanings assigned to them in the North Carolina
Business Corporation Act to the extent defined therein.
SECTION 6. INAPPLICABILITY OF THE NORTH CAROLINA SHAREHOLDER PROTECTION
ACT. The provisions of The North Carolina Shareholder Protection Act (N.C.G.S.
(section mark) 55-9-01 through (section mark) 55-9-05) shall not be applicable
to the corporation, effective as of August 21, 1990, the date this bylaw was
adopted by the Board of Directors in accordance with Section 55-9-05 of such
Act.
SECTION 7. INAPPLICABILITY OF THE NORTH CAROLINA CONTROL SHARE ACQUISITION
ACT. The provisions of The North Carolina Control Share Acquisition Act
(N.C.G.S. (section mark) 55-9A-01 through (section mark) 55-9A-09) shall not be
applicable to the corporation, effective as of August 21, 1990, the date this
bylaw was adopted by the Board of Directors in accordance with Section 55-9A-09
of such Act.
SECTION 8. EXECUTION OF INSTRUMENTS. All agreements, indentures, mortgages,
deeds, conveyances, transfers, certificates, declarations, receipts, discharges,
releases, satisfactions, settlements, petitions, schedules, accounts,
affidavits, bonds, undertakings, proxies, and other instruments or documents may
be signed, executed, acknowledged, verified, delivered or accepted on behalf of
the Corporation by the Chairman of the Board, or the President, or any Vice
Chairman of the Board, any Vice President or Assistant Vice President, or the
Secretary or any Assistant Secretary; provided, however, that where required,
any such instrument shall be attested by one of such officers other than the
officer executing such instrument. Any such instruments may also be executed,
acknowledged, verified, delivered, or accepted on behalf of the Corporation in
such other manner and by such other officers as the Board of Directors may from
time to time direct. The provisions of this Section 8 are supplementary to any
other provisions of these Bylaws.
ARTICLE IX
INDEMNIFICATION
SECTION 1. DIRECTORS AND EXECUTIVE OFFICERS INDEMNITY. Each director and
executive officer of the Corporation shall be indemnified by the Corporation
against liability in any proceeding (including without limitation a proceeding
brought by or on behalf of the Corporation itself) arising out of his status as
such or his activities in either of the foregoing capacities, except for any
liability incurred on account of activities which were at the time taken known
or believed by such person to be clearly in conflict with the best interests of
the Corporation. Liabilities incurred by a director or executive officer of the
Corporation in defending a proceeding shall be paid by the Corporation in
advance of the final disposition of such proceeding upon receipt of an
undertaking by the director or executive officer to repay such amount if it
shall be determined, as provided in Section 5(a) hereof, that he is not entitled
to be indemnified by the Corporation against such liabilities.
The indemnity against liability in the preceding paragraph of this Section
1, including liabilities incurred in defending a proceeding, shall be automatic
and self-operative.
SECTION 2. ADDITIONAL INDEMNITY. Any director, officer or employee of the
Corporation who serves at the request of the Corporation as a director, officer,
employee or agent of a charitable, not-for-profit, religious, educational or
hospital corporation, partnership, joint venture, trust or other enterprise, or
a trade association, or as a trustee or administrator under an employee benefit
plan, or who serves at the request of the Corporation as a director, officer or
employee of a business corporation in connection with the administration of an
estate or trust by the Corporation, shall have the right to be indemnified by
the Corporation, subject to the provisions set forth in the following paragraph
of this Section 2, against liabilities in any manner arising out of or
attributable to such status or activities in any such capacity, except for any
liability incurred on account of activities which were at the time taken known
or believed by such person to be clearly in conflict with the best interests of
the Corporation, or of the corporation, partnership, joint venture, trust,
enterprise, association or plan being served by such person.
In the case of all persons except the directors and executive officers of
the Corporation, the determination of whether a person is entitled to
indemnification under the preceding paragraph of this Section 2 shall be made by
and in the sole discretion of the Chief Executive Officer of the Corporation. In
the case of the directors and executive officers of the
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Corporation, the indemnity against liability in the preceding paragraph of this
Section 2 shall be automatic and self-operative.
SECTION 3. DEFINITIONS. For purposes of this Article IX of these bylaws
only, the following terms shall have the meanings indicated:
(a) The term "Corporation" means First Union Corporation and its
direct and indirect wholly-owned (excluding directors' qualifying shares)
subsidiaries.
(b) The term "director" means an individual who is or was a director
of the Corporation.
(c) The term "executive officer" means an officer of the Corporation
who by resolution of the Board of Directors of the Corporation has been
determined to be an executive officer of the Corporation for purposes of
Regulation O of the Federal Reserve Board.
(d) The term "liability" means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with respect to
an employee benefit plan), or reasonable expenses, including counsel fees
and expenses, incurred with respect to a proceeding.
(e) The term "party" includes an individual who was, is, or is
threatened to be made a named defendant or respondent in a proceeding.
(f) The term "proceeding" means any threatened, pending, or completed
claim, action, suit, or proceeding, whether civil, criminal,
administrative, or investigative and whether formal or informal.
SECTION 4. SETTLEMENTS. The Corporation shall have no obligation to
indemnify any person for an amount paid in settlement of a proceeding unless the
Corporation consents in writing to such settlement.
SECTION 5. ADDITIONAL PROVISIONS.
(a) Notwithstanding anything to the contrary provided herein, no
person shall have a right to indemnification with respect to any liability
to the extent such person is entitled to receive payment therefor under any
insurance policy or from any corporation, partnership, joint venture,
trust, trade association, employee benefit plan, or other enterprise other
than the Corporation, or to the extent that a court of competent
jurisdiction determines that such indemnification is void or prohibited
under state or federal law.
(b) The right to indemnification herein provided for shall apply to
persons who are directors, officers, or employees of corporations or other
entities that are hereafter merged or otherwise combined with the
Corporation only after the effective date of such merger or other
combination and only as to their status and activities after such date.
(c) The right to indemnification herein provided for shall inure to
the benefit of the heirs and legal representatives of any person entitled
to such right.
(d) No revocation of, change in, or adoption of any resolution or
provision in the articles of incorporation or bylaws of the Corporation
inconsistent with, this bylaw shall adversely affect the rights of any
director, officer, or employee of the Corporation with respect to (i) any
proceeding commenced or threatened prior to such revocation, change, or
adoption, or (ii) any proceeding arising out of any act or omission
occurring prior to such revocation, change, or adoption, in either case,
without the written consent of such director, officer, or employee.
(e) The rights hereunder shall be in addition to and not exclusive of
any other rights to which a director, officer, or employee of the
Corporation may be entitled under any statute, agreement, insurance policy
or otherwise.
(f) The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, or
employee of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, trade association, employee
benefit plan, or other enterprise, against any liability asserted against
such director, officer, or employee in any such capacity, or arising out of
their status as such, whether or not the Corporation would have the power
to indemnify such director, officer, or employee against such liability.
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